Wali Khan vs Hasham Khan

2012 P Cr. L J 276

[Peshawar]

Before Nisar Hussain Khan, J

WALI KHAN---Petitioner

Versus

HASHAM KHAN and others---Respondents

Criminal Miscellaneous Quashment No. 176 of 2010, decided on 7th September, 2011.

(a)Criminal Procedure Code (V of 1898)---

----Ss. 249, 249-A & 561-A---Penal Code (XLV of 1860), Ss.337-A(i)/337-F(i)/147/149--- Punishment of Shajah, ghayr-jaifah, rioting and unlawful assembly---Quashing of orders--- Impugned orders had been passed by Magistrate, one under S.249, and the other under S.249-A, Cr.P.C.---Both said orders had been upheld by the Sessions Court in revision---Validity--- Section 249, Cr.P.C. did not empower the Magistrate to fix time for appearance of the complainant and if he had failed to do so, then to acquit the accused on that basis---Magistrate, in the present case, had not passed order of acquittal of accused under S.249-A, Cr.P.C. after due compliance of legal formalities, rather he had passed one order whereby he stopped the proceedings under S.249, Cr.P.C. with the further direction to S.H.O. to produce the complainant along with the case file within one month, failing which the accused would stand acquitted under S.249-A, Cr.P.C.---Such was the original order whereby the accused had been acquitted--- Second order was just a cosmetic one acquitting the accused on the application and recommendation of the local police, although practically the accused had already been acquitted by the earlier order, which was highly illegal, unlawful and unwarranted order amounting to abuse of the process of court---Mandatory conditions for acquittal of accused mentioned in S.249-A, Cr.P.C. had not been complied with by the Magistrate---Neither Prosecutor had been heard, nor any finding was given that the charge against the accused was groundless or there was no probability of their conviction in the case---Even no reasons had been given by the Magistrate in support of his findings---Magistrate had acted in sheer violation of legal provisions---Findings of the revisional court were not applicable to the peculiar circumstances of the case---While exercising powers under S.561-A, Cr.P.C. High Court would not entertain the petition as a court of appeal against the revisional order of lower court, but it had to be ascertained that whether any illegality causing miscarriage of justice or abuse of process of court had been committed by the lower fora or not---High Court having reached the conclusion that grave illegality had been committed, would be under a legal obligation to set it right irrespective of the limitation, in order to meet the ends of justice---Impugned orders were quashed in circumstances and the case was remanded to Magistrate to proceed with the trial in accordance with law.

(b)Criminal Procedure Code (V of 1898)---

----S. 561-A--- Powers under S. 561-A, Cr.P.C.--- Scope--- While exercising powers under S.561-A, Cr.P.C. High Court would not entertain the petition as a court of appeal against the revisional order of lower court, but it had to be ascertained that whether any illegality causing miscarriage of justice or abuse of process of court had been committed by the lower fora or not-- -High Court having reached the conclusion that grave illegality had been committed, would be under a legal obligation to set it right irrespective of the limitation in order to meet the ends of justice.

Mian Saadullah Jando for Petitioner

Said Karim Shalmass and Ikramullah Khan, A.A.-G for Respondents

Date of hearing: 6th September, 2011.

JUDGMENT

NISAR HUSSAIN KHAN, J.---Through this quashment petition Wali Khan seek annulment of the order of learned Additional Sessions Judge/Izafi Zilla Qazi, Samarbagh dated 12-5-2010 whereby he maintained order of learned Illaqa Qazi Criminal Munda dated 28-1-2005 and 20-10- 2005 by dismissing the revision petition and upholding the order passed under sections 249 and 249-A, Cr.P.C.

2.Brief facts of the case are that two cross cases were registered against both the parties; one against the respondents vide F.I.R. No.107 dated 6-2-2004 under section 337-A(1)/337- F(1)/147/149, P.P.C. while the second F.I.R. No.116 dated 8-2-2004 was registered against the present complainant party under section 302/34, P.P.C. Police Station, Munda.

3.It appears from the record that on submission of challan before the Magistrate in case F.I.R. No.107, accused/respondents appeared while complainant could not be served as he had left his abode according to the report of the bailiff/process server. As a consequence of this report, learned Magistrate vide his order dated 28-1-2005, stopped proceedings under section 249, Cr.P.C, with the direction to the SHO concerned that he should produce complainant along with the case file within a period of one month failing which this order would be deemed as have been passed under section 249-A, Cr.P.C. and the accused would stand discharged. The learned Magistrate on the basis of this order along with report of the local police; that complainant party is absconder in cross case F.I.R. No. 116 and their arrest in near future seems impossible, so the accused were acquitted of the charge, on 20-10-2005. These orders were challenged by the petitioner before the learned Additional Sessions Judge/Izafi Zilla Qazi, Samarbagh District Dir Lower through a revision petition which was dismissed on the ground that order under section 249A was appealable under section 417(2-A), Cr.P.C. So the revision was barred under section 439(5), Cr.P.C.

4.Learned counsel for the petitioner argued that basic order dated 28-1-2005, passed by the Magistrate was illegal arbitrary which was revisable so the revision was competently filed. He further argued that there is no limitation for filing of revision petition, hence his revision was wrongly dismissed. He further argued that grounds of 249-A, Cr.P.C. have not been discussed nor made basis for acquittal of the accused. Rather the order is based on the earlier order of the Magistrate dated 28-1-2005 whereby the proceedings in the case was stopped. So in this view of the matter grave miscarriage of justice has been caused to the petitioner as he has not been heard at the time of acquittal under section 249-A, Cr.P.C. nor the prosecutor was given notice nor was heard, so the impugned orders of Magistrate are illegal. While learned revisional court was legally obliged to interfere for correction of this illegality of the trial court but he has failed to discharge his obligation.

5.Conversely, learned counsel for the respondents argued that learned Magistrate had given one month time to the complainant to appear and pursue his case but he failed to appear before the Court. He further submitted that respondent was absconder so he could not be served. He lastly submitted that the revision petition and quashment petition are time-barred, so this petition is liable to be dismissed.

6.Learned AAG appearing on behalf of the State conceded at the bar that orders passed by Magistrate are illegal. Regarding the service of the complainant he pointed out that Wali Khan petitioner was injured P.W. and was in custody of police in cross case, so he could have been served but the learned Magistrate did not make any effort to procure his attendance. However, he objected on maintainability of revision petition on the ground that petitioner was legally required to file appeal under section 417(2-A), Cr.P.C. but he has failed to avail that remedy so he was precluded to file revision petition which is barred under section 439(5), Cr.P.C. Hence in the circumstances, quashment petition under section 561-A, Cr.P.C. also does not lie. On these premises learned AAG sought dismissal of this quashment petition.

7.I have considered the submissions of learned counsel for the parties and learned AAG and have gone through the record with their able assistance.

8.The facts of the case clearly reflect that the learned Magistrate had acquitted the accused on 28-1-2005 whereby he stopped the proceedings under section 249, Cr.P.C. with the rider that complainant should be produced along with the case file within one month failing which the accused shall be deemed acquitted under section 249-A, Cr.P.C. There is no such provision under section 249, Cr.P.C. which may empower the Magistrate to fix time for appearance of the complainant and if he fails to comply with the order, the Magistrate may acquit the accused on that basis. Likewise section 249-A, Cr.P.C. has got its own connotation and limitation which have not been adhered to by the Magistrate. For ready reference section 249-A, Cr.P.C. is reproduced as under:--

249-A Power of Magistrate to acquit accused at any stage Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or there is no probability of the accused being convicted of any offence.

9.The bare reading of section 249-A, Cr.P.C. signifies that the first condition for any order to be passed under section 249-A, Cr.P.C. is that prosecutor should be heard but this requirement has not been complied with by the Magistrate. The second and prime condition precedent for acquittal of accused under section 249-A, Cr.P.C. is that if the charge is groundless or there is no

probability of accused being convicted of any offence. In support of his findings the Magistrate shall have to record reasons but none of these legal requirements find mentioned in the impugned orders of the Magistrate, which is sheer violation of legal provision and abuse of process of court as well as law which cannot be taken so lightly nor it can be maintained on any technical ground whatsoever.

10.So far as the findings of the revisional court as well as the objection of learned counsel for the respondents and learned AAG with regard to non-availing the remedy of appeal under section 417(2-A), Cr.P.C. is concerned, these are not applicable to the peculiar circumstances of the instant case. The learned Magistrate did not pass order of acquittal under section 249-A, Cr.P.C. after due compliance of legal formalities. Rather the Magistrate has passed the order on 28-1-2005 whereby he stopped the proceedings under section 249, Cr.P.C. and in the same breath, he further directed to the SHO concerned that the complainant along with the case file be produced within a period of one month failing which the accused shall stand acquitted under section 249-A, Cr.P.C. So this was the original order whereby the accused/respondents have been acquitted. The second order dated 20-10-2005 is just a cosmetic one which has been passed on the application and recommendation of the local police. While practically the respondents had already been acquitted by his earlier order dated 28-1-2005 which is highly illegal, unlawful and unwarranted and is abuse of process of the court which cannot be sustained by any means. If these orders of the Magistrate are maintained on any technical ground it would amount to perpetuate an illegality committed by the Magistrate.

11.In the given circumstances it is vividly apparent on the record that impugned orders of the Magistrate have caused grave miscarriage of justice, for rectification of which there is no remedy available to the petitioner except the inherent jurisdiction of this Court. While exercising powers under section 561-A, Cr.P.C. this Court does not entertain the petition as court of appeal against the revisional order of the lower court but it is to be ascertained that whether any illegality causing miscarriage of justice or abuse of process of court has been committed by the lower fora or not. Irrespective of the limitation, when the court comes to a definite conclusion that grave illegality has been committed which amounts to abuse the process of the court and law then it becomes legal obligation to set it right in order to meet the end of justice.

12.For the reasons discussed above, this petition is allowed. The impugned orders of learned Magistrate are quashed and the case is remanded back to the learned Magistrate to proceed with the trial in accordance with law.

N.H.Q./279/P Petition accepted.